

3. 

1 


>3> 










^^h^ 


^T 




.>^ 








iBti 



Oaff>':^ ? 



>s^ 






^L^ 



J>^ - 



^>^ >» 



>>■ ^> 



i<#:#'aJVJ'^S';;:>^o. 






>>>. 






>. O' )^ 






'^e*. > 






ILIBRARY OF CONGRESS.! 

^ ,,_ # 

^ ^^y^ LAL^ ^ 



'■ > > 

> 



^^v 



l?^> 



I UNITED STATES OF MERICA. J 



^S^? 









>>.■>» ■ < ■ > ? ^ - . 
























■'\' ^' "^ » ■>:>*> ' i 



^.^^ 






'1^ ) > 



->' J. ■>, 



-■ :j^ - 



-^-_^ 









:^ «►-'"> 






5^ 



-^> >>j> 






) ^ >> 



>.:» > i ^ 









> ■ ■->.>:"" 















>> > 



> 3> 
J>3> 






>^ >^ ^ 






X>JP>:^f^ 


















>^> 3> 3 









►>> 


:>""> 


► :> > 


> 


► 3) 


:> 


^> 


O 


►>?' 


> 


»>;-• 


y 


5 > 


:> 


xO 


> 


>:> 


> 


i'^:> 


s> 


> 


-> ^ 


3 


J> 


> - 


> - 


> > 


^ 





















REPRESENTATION IN CONGRESS. 



SPEECH 



HON. GEORGE VICKEES 




OF MARYLAND, 



HE UNITED STATES SENATE, JUNE 8, 1868. 



The Senate having under consideration the bill 
(H. R. No. 1058) to admit the States of North Carolina, 
South Carolina, Louisiana, Georgia, Florida, and 
Alabama to representation in Congress — 

Mr, VICKERS said : 

Mr. President: The bill before the Sen- 
ate is "to admit the States of North Caro- 
lina, South Carolina, Louisiana, Georgia, and 
Florida to representation in Congress." The 
amendment proposed by the committee im- 
poses two conditions upon the admission of 
these States. The first is, that they shall 
ratify what is called the fourteenth amendment 
of the Constitution; and the second, "that 
there shall never be in such State any denial 
or abridgement of the elective franchise to any 
person by reason of or on account of race or 
color, excepting Indians not taxed." An 
amendment has also .been proposed to insert 
"Alabama" in connection with these States. 
I have discovered during ray brief experience 
in the Senate that upon a motion to amend, the 
merits of the bill are generally debated. My 
object, therefore, will be to discuss a few of 
the principles involved in the bill, and also of 
the reconstruction measures upon which it is 
founded. 

The third section of the fourth article of the 
Constitution authorizes the admission of new 
States. It does not, as alleged by the Senator 
from Vermont, [Mr. Edmunds,] as I under- 
stood him in the discussion of the bill for the 
admission of Arkansas, authorize Congress to 
reorganize new States upon republican prin- 
ciples and give to it plenary and absolute 
power to effect such organizations. I under- 



stand the admission of a State to be one with 
a constitution duly organized by the people of 
the State before admission is applied for, and 
the only condition upon which that admission 
is to be effected, is that the constitution in its 
principles shall be adapted to the political 
principles of the Government to which appli- 
cation is made, being homogeneous to it and 
formed by the people of the State. The power 
to admit presupposes a State duly organized 
before application is made for that admission, 
not a power to organize or reorganize States, 
but only a power to admit them when duly 
organized, if their constitutions are of such a 
character as should receive the approbation 
Congress. 

I have looked in vain for any clause in the 
Constitution which authorizes Congress to 
organize or reorganize States, or to impose 
conditions upon States that apply for admis- 
sion. If it is not in the simple power to admit, 
then I suppose it must be claimed under that 
to guaranty a republican form of government. 
But the same difficulty is presented here as in 
the case of admission, for the power to guar- 
anty presupposes something to be guarantied. 
It necessarily implies that the constitution 
which is to be guarantied is in form repub- 
lican. If a debt is to be guarantied, that 
debt must have a previous existence. The 
guarantee can apply only to that which has 
such existence; and so it is in regard to the 
guarantee of a republican form of government. 
The forty-third number of the Federalist, writ- 
ten by Mr. Madison, page 201, after quoting 
the provision in the Constitution which author- 



.VLB 



izes *.he Legislature to guaranty a republican 

form of government, says: 

" In a confederacy founded on republican prin- 
ciple? itnd composed of republican members, the 
superintending Government ought clearly to possess 
authority to defend tho system against aristocratic 
or monarchical innovations." 

Again, on page 202 : 

"But the authority extends no further than to a 
guaranteeofarepubliean form of government, which 
supi)oses a preexisting government of the form which 
is to be guarantied. As long, therefore, as the exist- 
ing republican forms are continued by the States, 
tliey are guarantied by the Federal Constitution. 
Whenever the States may choose to substitute other 
reimblican forms they have a right to do so and to 
claim the Federal guarantee for tho latter. The only 
restriction imposed on them is, that they shall not 
exchange republican for anti-republican constitu- 
tions ; a restriction which, it is presumed, will hardly 
be considered as a grievance." 

Again, in the thirty-ninth number of the 

Federalist, page 174, speaking of a republican 

government, Mr. Madison says: 

" If we resort, for a criterion, to the different prin- 
ciples on which different forms of government are 
established, we may define a republic to be, or at 
least may bestow that name on a government which 
derives all its power directly or indirectly from the 
great body of the people, and is administered by per- 
sons holding their offices during pleasure, for a lim- 
ited period, or during good behavior." 

I have also an authority from a distinguished 
member of the Senate, who has been long in 
public life, who has age, experience, and judg- 
ment, and has been associated with some of 
the most brilliant men in either House of 
Congress who shed luster upon the history 
of the country. I refer to a speech made by 
Hon. Bexjamin F. Wade, Senator from Ohio, 
on the 7th of March, 186G, upon the question 
of the admission of Nebraska into the Union. 
He said : 

" I do not desire to enter into a discussion ; but I 
will say that the committee had before them first 
the constitution of the State of Nebraska, which 
they examined and found a very liberal, and a very 
good constitution, analogous to most of the constitu- 
tionsof the States, indeed almost a copy of the con- 
stitutions of many of the western States. There is 
nothing in it to which any gentleman here would 
object, except that clause which restricts the fran- 
chise to white persons. That question I do not pro- 
pose to discuss, because no new light can possibly be 
thrown upon it." — Congressional Globe, first session 
Thirty-Ninth Congress, page 4207. 

Again, in the same speech, he said: 

"In the next place, as for the Senator from 
Massachusetts, he challenges mo to show that this 
constitution is republican in form. Well, sir, it is 
republican in form, but is not that kind of repub- 



licanism that I approve of. If I had my way 
about it nobody would be excluded from the fran- 
chise that was a male citizen of proper age, let his 
color be what it would. That would be the color 
of republicanism that I should like the best; but to 
deny that, under the Constitution of the United 
States, this constitution is repuKlican in form, is to 
deny that we have a rer)ublic at all, for when the 
Government was formed I believe there was not more 
than one State at all events that was republican in 
form unless this is republican in form. It is repub- 
lican in form and also in substance, for I do not sup- 
pose (and I am informed that there are not) that 
there are fifty colored persons in the whole Territory ; 
but they ought to vote if there was but one." — Ibid., 
page 4208. 

We have this high authority as to what con- 
stitutes a republican government. Here was 
a constitution presented in 18G6 with a restric- 
tion confining suffrage to white persons ; but 
the Senator from Ohio said that such a consti- 
tution, which prohibited free negroes from 
exercising the right of suffrage, was a repub- 
lican constitution ; and further, that there was 
perhaps but one State when the Union was 
formed whose constitution did not contain 
alike prohibition. He said further, that that 
constitution was not only republican in form, 
but republican in substance, although by it 
free negroes were excluded from the right of 
suflfrage. 

The policy of Congress in the bills which 
have been submitted to the consideration of 
the Senate, in regard to the admission of the 
southern States, must proceed upon the assump- 
tion that these States are out of the Union. 
Then I ask, having once been in the Union, 
when and how did they get out of it? Was it 
by the ordinances of secession? Did those 
ordinances separate or sever them from the 
Union? I understood the honorable Senator 
from Michigan, [Mr. Howard,] while discuss- 
ing this bill on Saturday — and if I am mis- 
taken in his position he will correct me — to 
say that the ordinances of secession on the 
part of these States did forfeit all their polit- 
ical rights. 

Mr. HOWARD. Followed by acts of war 
upon the Government of the United States 
was the ground upon which I put it. 

Mr. VICKERS. Followed by acts of war 
upon the Government of the United States ; 
and further, that by the conquest of those States 
all the political rights to which they had pre- 
viously been entitled were acquired by, and 



8 



accrued to, the Unit.'d States, who had the right 
to impose any conditions they pleased upon 
them. Was that the honorable Senator's posi- 
tion? 

Mr. HOWARD. Not exactly; but I will 
not interrupt you further. 

Mr. VICKERS. The ordinances of seces- 
sion of themselves certainly did not take these 
States out of the Union, because they were of 
a peaceable character; and if by peaceable 
measures they could become disunited from 
the Government, then the Government would 
not have prosecuted the war which they did 
upon those States; but it was upon the prin- 
ciple that the Union was indissoluble. It could 
not have been successfully waged upon any 
other principle. The whole North and the 
border States fought it out on the principle that 
the Union was not dissolved. If it had been 
proclaimed at the beginning of the war that 
these acts of secession, even if followed by acts 
of hostility, had taken those States out of the 
Union, the combat never could have been 
successfully ended. 

If the war was carried on to preserve the 
Union, not to restore it, it was upon constitu- 
tional principles, and the ordinances of seces- 
sion had no effect in dissolving the connection 
of these States with the Government of the 
United States. If it was fought to preserve 
the Union, I ask how is it possible that the 
success of our arms could eflPect that which the 
contest was prosecuted to prevent? Did the 
triumph of our arms in that great conflict dis- 
solve the Union? If the ordinances of seces- 
sion did not, how could the success of our arms 
produce that result? 

But I understood the Senator from Michigan 
to say that the ordinances of secession, followed 
by acts of war upon the Government, forfeited 
all rights on the part of those States. Mr. 
President, was that the view which Congress 
took in 1861? In the month of July, 1861, 
after the first battle of Manassas, did the 
Congress of the United States entertain the 
opinion that this Union had been dissolved ? 
No, sir. 

There was no declaration of war unless the 
declaration made by Congress of the objects 
and principles upon which it was prosecuted 
be considered such. Why, sir, had not this 



country a very serious difficulty with the Gov- 
ernment of Great Britain because that Govern- 
ment acknowledged the southern States to be 
belligerents ? If they were out of the Union 
they were a distinct and separate nation, and 
Great Britain had the right to acknowledge 
them as belligerents. That difficulty has not 
yet been fully adjusted. We have denied that 
they were belligerents or that that Government 
had any right to recognize them as such. 

Then upon what clause of the Constitution 
was this war prosecuted ? Not upon the power 
to make war, because there was no declaration 
of it; but upon the power to suppress insur- 
rection, to execute the laws, and to repel inva- 
sion. If there is any other portion of the Con- 
stitution under which this civil conflict was 
conducted, I have been unable to discover it. 
If the Union had been dissolved by the ordi- 
nances of secession would the war have been 
fought to suppress insurrection or to repel 
invasion or to execute the laws ? Does not 
the fact that insurrection and the execution 
of the laws negative the idea of a dissolution? 
The declaration which Congress made on the 
24th of July, 1861, and which was proposed by 
the present President of the United States, 
then a Senator from the State of Tennessee, 
after the first battle, was in these words : 

"Resolved by the Senate, That the present deplor- 
able civil war has been forced upon the country by 
the disunionists of the southern States now in arms 
against the constitutional Government, and in arms 
around the Capital ; that in this national emergency, 
Congrees, banishing all feeling of mere passion or 
resentment, will recollect only its duty to the whole 
country; that this war is not waged on their part in 
any spirit of oppression, or for any purpose of con- 
quest or subjugation, or purpose of overthrowing or 
interfering with the rights or established institu- 
tions of those States, but to defend and maintain the 
supremacy of the Constitution, and to preserve the 
Union with all the dignity, equality, and rights of 
the several States unimpared; and that as soon as 
these objects are accomplished the war ought to 
cease." 

It was not prosecuted on the part of the 
United States for conquest or subjugation, not 
to interfere with any of the established institu- 
tions of the southern States, but merely to pre- 
serve the Union and the supremacy of the Con- 
stitution. The Constitution is the supreme law 
of the land ; and it was to enforce the suprem- 
acy of that law that the war was waged. Law 
is a rule of action. That rule must have been 



binding upon the southern States when this 
declaration was issued, or the supremacy of 
the law could not have been asserted over 
them. Then it was to assert the supremacy of 
this Constitution and of this law over those 
States that this declaration of Congress was 
made. It was not for the purpose of subjuga- 
tion, but merely to maintain and enforce the 
law, a law which bound the southern States, 
and was supreme because constitutional. It 
was for the execution of that law by all the 
power of the Government that the war was 
prosecuted, and not for the purpose of subju- 
gation or of conquest. Congress did not then 
consider that the Union was dissolved, or that 
the southern States had forfeited any rights 
which they had under the Government. On 
the contrary, they asserted that whenever the 
law was practically admitted to be supreme 
the war should cease ; that it was not prose- 
cuted for the purpose of impairing the dignity, 
equality, and rights of the southern States. It 
recognized those States as in the Union, and 
said that as soon as the war ceased they should 
have the same dignity, the same equality, and 
the same rights unimpaired that they had when 
the conflict commenced. That was the declara- 
tion Congress made, not only to the southern 
States, but to the whole nation ; a declaration 
upon which the war was fought ; and I say it 
could not have been successfully fought upon 
any other principles. 

Mr. President, if this bill passes, v/hat be- 
comes of the "dignity" of the southern States? 
Have they the same dignity that New York, 
Pennsylvania, or other States have in this 
Union? When they are commanded before 
their admission to accept the constitutional 
amendment, and never to alter or change their 
organic law ; that before they shall be admit- 
ted here, they shall be deprived and for ever 
deprived of the right to amend their constitu- 
tions, so as to make a distinction in regard to 
suffrage on the ground of race or color — is 
that the dignity of which the resolution of 
Congress spoke? Are those the equal rights 
which the other States possess, and which were 
meant by Congress when it passed this resolu- 
tion? Are these the rights which the southern 
States possessed when the rebellion commenced 
and when this proclamation of Congress was 



made? They are asked to come in not upon 
equal terms, not having the same dignity, not 
having equality of rights with the other States. 

I heard it said — I think it was by the honor- 
able Senator from Ohio, [Mr. Sherman,] when 
discussing the Arkansas bill — that Arkansas 
should be admitted because Congress had 
offered inducements to Arkansas, had made 
propositions to her. She had complied with 
all those propositions except one, which had 
reference to the ratification of the fourteenth 
article of amendment to the Constitution ; but 
that, as Arkansas had done all she could by a 
compliance with the propositions which Con- 
gress had submitted, therefore she ought to be 
received. Apply that doctrine to the amend- 
ment now before the Senate for the admission 
of Alabama. The amendment proposes to 
admit that State, not because she has complied 
with the propositions submitted to her by Con- 
gress, but because she has not complied with 
them. Arkansas was to be admitted because 
she had complied, and Alabama Is now to be 
admitted because she has not complied. The 
one complied with the requisitions of the law, 
and the other has not complied with those 
requisitions. 

Then upon what ground can Alabama be 
admitted ? It must be upon the ground of the 
absolute right of Congress to admit or reject 
without reference to the law which was sub- 
mitted to that State as a condition when she 
held her election. If she can be admitted 
because a majority of her registered voters 
have not ratified the constitution where is the 
necessity of requiring a majority of the votes 
cast at the elections in the other States to 
entitle them to admission? If Congress has 
the power to say to Alabama, " You shall be 
admitted because a majority of your people 
have not ratified the constitution," It has the 
same right to say to South Carolina and 
the other States that they shall be admitted 
although their majorities may or may not be in 
favor of the constitution. The fact that those 
States gavea majority for the Constitution does 
not alter the case nor vary the principle. If 
they had given majorities against the constitu- 
tion they could be admitted upon the same 
principle and with the same propriety that 
it is now proposed to admit Alabama. It 



o 



resolves itself into a question of power, and 
not of right. 

If the proposition submitted to Arkansas, as 
argued by the Senator from Ohio, should have 
force, should not this proposition, also, submit- 
ted to the whole country by Congress in 1861, 
when it declared the purposes for which the 
war was conducted? If the proposals of Con- 
gress to Arkansas should have force, should 
not these proposals submitted not only to the 
South, but to the nation, be respected? 

I understood the Senator from Vermont [Mr, 
Edmunds] to say, in his discussion of the Ark- 
aiisas bill, that a State had a right to enter 
into a compact to deprive itself of political 
power ; that the States could divest themselves 
of political power by a compact with the Gen- 
eral Government. But can the people of a 
State surrender the power to regulate suffrage? 
Can it be possible that a State can make a com- 
pact for the surrender of that right which 
affects the life of the State, which is the life 
of the State, to the General Government? It 
was well said by the honorable Senator from 
Wisconsin that if a State surrenders her power 
over suffrage she ceases to be republican. 

But the provisions in the bill now before the 
Senate in regard to suffrage appl}' not only to 
the election of President and members of the 
lower HoHse of Congress, but also to the elec- 
tion of a State Legislature. Can it be said 
that Congress has a right to prescribe terms to 
a State which are to affect her internal condi- 
tion, her local affairs, which have no connec- 
tion with the General Government? Can it be 
that Congress has a right to say to a State that 
the qualifications of electors for her Legisla- 
ture shall be of a certain description? Can a 
State bind her people in future generations to 
surrender a right which belongs to them as 
well as to the present generation ? The power 
over suffrage is inalienable. It is like some 
other powers which are not the subject of con- 
tract, and all compacts in reference to them 
are nugatory and void. 

It was said by the Senator from Vermont, in 
the discussion of the Arkansas bill, that a State 
had a right to surrender a portion of her sov- 
ereignty in regard to taxation, and also the 
administration of justice. But could a State 
government surrender to the General Govern- 



ment the whole power of taxation over her 
people? It would be impossible. Could she 
surrender to the General Government all power 
over descents ? These are inalienable powers, 
with which she cannot part. The cases cited 
by him relate to partial taxation for benefits 
received and the titles of individuals to certain 
property, which do not affect the sovereign 
character of the State. 

It must be recollected that the General 
Government is one of delegated limited and 
defined powers, not a nation as Great Britain 
or France, Austria or Prussia. It received 
its existence from the States for the purposes 
of common defense, general welfare, and the 
security of liberty, and is hedged in by defined 
boundaries. It is the creature of the States, 
made by a surrender of certain of their powers 
for specific purposes, the proper execution of 
which was to inure to the mutual benefit of all 
the States. It can exercise no power nor claim 
any attributes of sovereignty inconsistent with 
the independence, dignity, and equality of the 
States. The idea that the-child and creature of 
the States and the people of the States, created 
and brougl^t into being by their coijperation, 
to preserve, protect, and defend the common 
interests against foreign nations, and to pro- 
mote the general welfare, should become the 
master and monster to absorb the powers of 
the States, take from them their chief attributes 
of sovereignty, and degrade them, was never 
before heard of. In the forty-fifth number of 
the Federalist, written by Mr. Madison, I find 
these words : 

"The powers delegated by the proposed Constitu- 
tion to the Federal Government are few and defined. 
Those which are to remain in the State governments 
are numerous and indefinite. The former will be 
exercised principally on external objects, as war, 
peace, negotiation, and foreign commerce, with 
which last the power of taxation will, for the most 
part, be connected. The powers reserved to the sev- 
eral States will extend to all the objects which, in 
the ordinary course of aCfairs, concern the lives, lib- 
erties, and properties of the people, and the internal 
order, improvement, and prosperity of the State." 

Here is a Government of limited powers, 
expressed, defined, and bounded by provisions 
of the Constitution, while the powers remaining 
in the States are unlimited and indefinite : and 
now this Government of limited and dedned 
powers seeks to obtrude a constitution upon a 



6 



State ofunlimited and undefined powers. Could 

it, be said that under the Articles of Confedera- 
tion the Congress of the United States would 
have such a power as is now claimed by this 
Congress in regard to imposing restrictions' 
upon a sovereign State? No such power was 
given to the Confederacy, and no pretense was 
ever set up that any such had any legal exist- 
ence. If under the Articles of Confederation 
no such power existed, does any such exist 
under the Constitution of the United States? 
I read again from the forty-fifth number of the 
Federalist, written by Mr. Madison : 

"If the new constitution be examined with accu- 
racy and candor, it will be found that the change 
which it proposes consists much less in the addition 
of new powers to tlie Union than in the invigoration 
of its original powers. The regulation of commerce, 
it is true, is a new power; buk that seems to be an 
addition which few oppose, and from which no appre- 
hensions are entertained. The powers relating to 
war and peace, armies and fleets, treaties and finance, 
with the other more considerable powers, are all 
vested in the existing Congress by the Articles of 
Confederation. The proposed change does not enlarge 
these powers; it only substitutes a more effectual 
mode of administering them. The change relating 
to taxation maybe regarded as the most important; 
and yet the present Cofigress have as complete au- 
thority to require of tire States indefinite supplies 
of money for the common dEfense and general wel- 
fare, as the future Congress will have to require them 
of individual citizens; and the latter will be no more 
bound than the State? themselves have been to pay 
the quotas respectively taxed on them." 

No such power as that claimed by this Con- 
gress existed in Congress under the Articles 
of Confederation ; and if any one will take the 
trouble to read the preamble to those articles 
and the preamble to the Constitution they 
will find them substantially the same, with the 
addition that the Union was to be formed by 
the adoption of this Constitution. Here is a 
Constitution having no new powers but that 
in reference to the regulation of commerce; a 
Constitution with no enlarged powers ; no 
additional, except that with reference to com- 
merce ; a Constitution vvhich merely gave 
additional vigor to enforce the powers which 
were in Congress under the Articles of Confed- 
eration ; and under this Constitution, with such 
an interpretation as that, we are now called 
upon to exercise a power not in the Articles 
of Confederation, not in the Constitution, but 
which can be found only by some implication 
which T cannot discover nor understand. 



In regard to the rights of the States even 
after their admission, in the case of Pollard's 
Lessee vs. Hagan, in 3 Howard, which was re- 
ferred to in the discussion of the Arkansas bill , 
the Supreme Court of the United States say: 

"The right of Alabama, and of every other new 
State, to exercise all the powers of government 
which belong to and may be exercised by the ori- 
ginal States of the Union, must be admitted and 
remain unquestioned, except so far as they are tempo- 
rarily deprived of control over the public lands. 

" Whenever the United States shall have fully 
executed these trusts, the municipal sovereignty of 
the new States will be complete, throughout their 
respective borders, and they and the original States 
will be upon an equal footing in all respects what- 
ever. AVe therefore think the United States hold 
the public land within the new States by force of 
the deed of cession and the statutes connected with, 
them, and not by any municipal sovereignty which 
it may be supposed they possess or have reserved by 
compact with the new States for that particular pur- 
pose. The provision of the Constitution above re- 
ferred to shows that no such power can be exercised 
by the United States within a State. Such a power 
is not only repugnant to the Constitution, but it is 
inconsistent with the spirit and intention of the deed 
of cession." 

Further, the court say: 

" It cannot be admitted that the king of Spain 
could, by treaty or otherwise, impart to the United 
States any of his royal prerogatives; and much less 
can it be admitted that they have capacity to receive 
or power to exorcise them. Every nation acquiring 
territory by treaty or otherwise, must hold it subject 
to the constitution and laws of its own Government, 
and not according to those of the Government ced- 
ing it," 

The court say that although the king of 
Spain had this eminent domain, although he 
had a right to grant the land under the water, 
yet, when the United States took the territory 
they did not take with it such a power over 
the land covered by the water as that they 
could patent it ; in other words, that they took 
it in trust for the people of the United States ; 
that they could not take this right which the 
king of Spain had in the soil; they could not 
grant it; and that the State of Alabama could 
not be deprived of her use of the navigable 
waters by a grant of the land. 

The same doctrine v/as held in Withers vs 
Buckley, (20 Howard's Report, page 92,) 
where the Supreme Court in the opinion say : 

"It was contended that the Mississippi river, and 
the navigable rivers and waters leading into the 
same, shall be common highways and forever free as 
well to the inhabitants of the State of Mississippi as 
to other citizens of the United States. 



/" 



"In considering this act of Congress of March 1, 
1S17, it is unnecessary to institute any examination 
or criticism as to its legitimate meaning, or opera- 
tion or binding authority, further than to affirm 
that it could have no effect to restrict the new State 
in any of its necessary attributes as an independent 
sovereign government, nor to inhibit or diminish its 
perfect equality with, the other members of the con- 
federacy with which it was to be associated. 

" These conclusions follow from the very nature and 
object of the confederacy, from the language of the 
Constitution adopted by the States, and from the 
rule of interpretation pronounced by this court in 
the case ofPollard's Lessee against Hagan, 311. p.779." 

Although the State of Mississippi made a 
compact with the General Government upon 
her admission, it was held that such was not 
valid, no such agreement could be entered 
into, and that the people of Mississippi had 
the right to the free waters of the State. 
Before the General Government can acquire 
power over the right of sufiFrage in the States 
there must be a change of the Constitution. 
It is contrary to the spirit and the genius of 
our Government that with such limited powers 
it should have the right to control suffrage or 
to make a contract for the control of it or its 
prohibition in any of the States. It has no 
existing capacity to acquire or use such polit- 
ical power. It could not obtain by treaty the 
absolute power to control the soil and waters 
ceded to it so as to make a condition relating 
to them in the nature of a compact when pro- 
viding by law for the admission of Alabama 
and Mississippi, because the exercise of sucti 
a power by a Government of limited and spe- 
cific powers was inconsistent with the nature 
and rights of State governments as they existed 
at the time of the formation of the Constitu- 
tion, and of all such which should be admitted 
into the Union, and which, of constitutional 
necessity, must be upon terms of equal dignity 
and rights. By what authority, express or 
implied, can it now receive and hold alleged 
forfeited rights of sovereign States in trust to 
be dispensed at pleasure on a subsequent rec- 
ognition of those States? The theory that the 
General Government can become a trustee of 
sovereign political State power is a pretension 
which finds no sanction or color of authority 
in the letter or spirit of the Constitution, nor in 
the history of the Government, nor in analogy, 
nor in any of the discussions of statesmen, com- 
mentaries, and written dissertations upon our 



frame of government, nor in any known tra- 
ditions or speculations prior to the year 1861. 
As a further illustration of the superiority 
of the State governments in reference to their 
reserved power and dignity, and of the proper 
relation of the General Government to the 
States, I refer to the forty-fifth number of the 
Federalist, which declares — 

" That the State governments will have the advan- 
tage of the Federal Government, whetherwecomparc 
them in respect to the immediate dependence of the 
one on the other; to the weight of personal influence 
which each side will possess; to the powers respect- 
ively vested in them; to the predilection and prob- 
able support of the people; to the disposition and 
faculty of resisting and frustrating the measures of 
each other. TheState governments may be regarded 
as constituent and essential parts of the Federal 
Government; while the latter is nowise essential to 
the operation or organization of the former. With- 
out the intervention of the State Legislatures tho 
President of the United States cannot be elected at 
all. They must in all cases have a great share iu his 
appointment, and will, perhaps, in most cases, of 
themselves determine it. The Senate will be elected 
absolutely and exclusively by the State Legislatures. 
Even the House of Representatives, though drawn 
immediately from tho people, will be chosen very 
much under the influence of that class of men whoso 
influence over the people obtains for themselves an 
election into the State Legislatures. Thus each of 
the principal branches of the Federal Government 
will owe its existence more or less to the favor of the 
State governments, and must consequently feel a 
dependence which is much more likely to beget a 
disposition too obsequious than too overbearing 
toward them." 

We have thus presented to us by the able and 
enlightened pen of Mr. Madison, who assisted 
to frame the Constitution, who understood thor- 
oughly the nature and extent of the powers. of 
the State governments, imparted and reserved, 
and without whose aid and influence the Con- 
stitution would probably not have been adopted, 
a statesman's account of the character, attri- 
butes, and relations of the States and General 
Government, and the dependence of the latter 
for its continued existence upon the former; 
and now at this enlightened period we liave 
the extraordinary exhibition of a Goveriuneiit 
which he foretold would be more likely to 
become obsequious, arrogating to itself original 
and sovereign functions and powers over the 
existence and organic laws of State govern- 
ments, sitting in judgment upon them, pre- 
scribing conditions of a fundamental nature 
upon their constitutions, and attempting to 
fasten a perpetual restriction upon the right 



8 



of the people to alter their form of govern- 
ment ! 

A pamphlet in reference to the State of 
South Carolina has been laid upon my table, 
and as that is one of the States included in 
the_,present bill, I beg permission to read some 
extracts from it. It is signed by Wade Hamp- 
ton, Joseph Daniel Pope, John P. Thomas, 
Samuel McGowau, F. W. McMaster, and W. 
M. Shannon, State Central Executive Com- 
mittee. These gentlemen say: 

"The State is now sadly impoverished. The prop- 
erty which her people had in her slaves hns been 
swept away; it is true, given up by and with the con- 
sent of the State; nevertheless, that property no 
longer represents capital and value. The ravages of 
war, the marks of the conqueror's torch, are every- 
where visible. The labor of the country is passing 
from one State to another, and is disturbed and de- 
moralized. The flower of the Commonwealth has 
fallen on the battle-field, and the broken fortunes and 
disappointed hopes of a proud people weigh heavily 
upon the energies of at least the old and the less san- 
guine among us. Yet, under these circumstances, 
affecting enough to touch the sympathies of every 
manly nature, and in violation, as we conceive it, of 
the political inheritance of our forefathers, here in 
South Carolina we are threatened with the onus of a 
monstrous plan of public spoliation under the guise 
of an equitable system of taxation. Under the forms 
of law it is proposed to take away the little that the 
war has left us. ' Taxation without representation' 
is combined with ' representation without taxation.' 
Thus, in South Carolina, it is contemplated to revive 
the tyranny of the British Parliamentinl776, and to 
add thereto anew and startling feature," 

The Constitution which we are now called 
upon to recognize, and upon which this State 
is to be admitted, was framed principally by 
negroes. I read from the same pamphlet : 

" The constitutional convention was composed of— 

Whites 47 

Colored 74 

121 

Seventy-four colored pay of taxes $117 93 

One alone paying 85 35 

Hence seventy-three colored pay 32 58 

or less than fifty cents each. 

Forty-seven whites pay 761 62 

One white (conservative) paying 508 85 

Hence forty-six whites pay $252 77 

,Gr less than six dollars each. 

" Of the forty-seven white members, twenty-three 
pay no tax at all, and of the seventy-four colored 
members, fifty-nine pay no tax at all. Of the whites, 
at least one fourth were Government employes and 
northern adventurers, and of the colored men, a 
goodly number were from abroad." 

I have thus given a description of the com- 
ponent parts of the convention which framed 



the constitution in South Carolina. Under that 
constitution they have elected a Legislature 
thus composed: 

" The Legislature elected under the new constitu- 
tion stands thus, exclusive of the districts of Marion 
and Lancaster, as the Democratic success in these 
districts is contested : 

Senate. 

Whites 20 

Colored 12 

Total 32 

House of Representatives. 

Whites 37 

Colored 86 

Total 123 

Recapitulation. 

Whites .57 

Colored 98 

Whole number 155 

or nearly two colored to one white. 

Ninety-eight colored pay of taxes 8143 74 

One colored paying 83 35 

Hence ninety-seven colored pay S60 39 

or less than seventy cents each. 

Fifty-seven whites pay §491 49 

Eleven couservative whites pay 194 43 

Hence forty-six whites pay $297 06 

or less than seven dollars each. 

"Of these fifty-seven white members twenty-four 
pay no taxes at all. Of these ninety-eight colored 
members sixty-seven pay no taxes at all. 

" With regard to the State government : the officers 
consist of seven whites and one colored ; the colored 
man having the paid office of least profit. 

As to taxes: 

The Governor pays $00 00 

The Secretary of State 00 00 

The Comptroller General 00 00 

The Treasurer 00 00 

The Attorney General 00 00 

The Superintendent of Education 00 00 

The Lieutenant Governor 15 99 

The Adjutant and Inspector General 1 00 

Making $16 99 

" Thus the eight members of the State corps of offi- 
cers pay on an average each $2 11." 

Mr. President, I ask if the Senate of the 
United States will receive a State into this 
Union on a constitution thus formed and a 
government thus instituted ? It was ' ' taxation 
without representation" that produced in a 
great degree the war of our independence ; it 
was one of the great burdens and evils com- 
plained of by our fathers that they were taxed 
without representation; but here in this Gov- 
ernment we have not only the people taxed 
without representation, but we have this griev- 
ance doubly intensified by having representa- 
tion virtually without taxation. Could there 



9 



be a more flagrant wrong upon any free people 
than we impose by accepting this constitution 
and form of government? In these southern 
States, according to their constitutions, the 
emancipated slaves are entitled to suffrage. 
They are more numerous in some than the 
white population ; while in all many of the 
whites are disfranchised. 

If I understood the Senator from New Hamp- 
shire, [Mr. Pattersox,] he said that intelli- 
gence was necessary for self-government as 
well as for political government. Now, I ask 
where is the intelligence upon which this con- 
stitution of South Carolina is based ? Where 
is the intelligence that elected her Legislature, 
composed principally of the recently emanci- 
pated slaves ? I have always been taught to 
believe that no republican Government could 
exist unless it was predicated upon the intelli- 
gence and virtue of the people. These negroes 
have had no opportunity to become intelligent. 
They were born and reared in ignorance, 
uneducated, unlettered, superstitious, and 
credulous, and I would almost be inclined to 
assert that one half of them never heard the 
word "loyalty" o'r the word " Union" until 
they were told when these elections were about 
to bo held. Why, sir, what do they know of 
the constituents of a republican Government? 
What about the coordinate departments of 
Government? the checks and balances that 
regulate a republic. They comprehend nothing 
in this respect, and in their present condition 
are unable to understand even the elementary 
principles of a republican Government ; and 
yet we are to admit a State founded by ignor- 
ance, not by intelligence. I know that " lib- 
erty and loyalty" is a favorite theme with 
some gentlemen here ; but are they alone a 
sufficient foundation for a republic? These 
people have no intelligence, not sufficient at 
least to engage in the formation of a constitu- 
tion or of ordinary legislation. What is our 
practice when we alter a constitution of one of 
our State governments? Is it not to elect the 
most intelligent men in the community? gentle- 
men of experience and of some political dis- 
tinction, who have a knowledge of the nature 
and the workings and operations ofgovernment ; 
but here we have a constitution formed by men 
who could not, perhaps, spell the word " con- 



stitution," and who know nothing of the rudi- 
ments of a constitution. 

To show that these people are ignorant, and 
known to be so, let me read au extract from a 
recent number of the New York Tribune : 

"Republicans in all the States had better make 
up their minds at once that there cannot be two 
policies in the party at once, one for the North and 
one for the South. We cannot give the ignorant 
millions of freedmen in the rebel States the ballot, 
and the same time refuse it to the educated thou- 
sands in the North. If we attempt such a jugglery 
we shall find out that we have not cheated the negro, 
but ourselves." 

I read this for the purpose of showing the 
opinion of one of the leading editors of this 
country, publishing, perhaps, one of the most 
influential papers, that these are "ignorant 
millions." Is it possible that we are to give 
to these "ignorant millions" the preponder- 
ance over the white race v/ho own the land 
and other property of the South, and enable 
them to impose taxes without limitation. The 
committee from South Carolina, to whom I 
have alluded, have given in their appeal the 
items of taxes to be raised in that State. I 
will not trouble the Senate by going over the 
details, but will give the aggregate, which is 
$2,230,950. These gentlemen say : 

"The late assessment of real estate throughout tho 
State, city, town, and country, is S70,507,075, on which 
a tax levied of three per cent, will raise $2,115,212. 
If real estate owners are to defray the expenses of 
the State, it will require more than three percent, to 
meet them. Formerly it was about one half percent., 
and that, too, when lands and real estate in general 
had not depreciated in value." 

Shall we, by the adoption of this bill, com- 
mit the whole property of that State, valued 
at $70,000,000, and the taxes of the State, 
amounting to $2,000,000, into the hands of 
these men who pay no taxes comparatively — 
many of whom pay none absolutely — and who 
therefore have no interest but to increase taxa- 
tion and expenditures? 

But upon what ground do we give to these 
people the elective franchise? Is it for their 
benefit? I have always understood that when 
a franchise of any sort was bestowed, it was 
intended for the advantage of the persons upon 
whom it was conferred. But is the elective 
franchise conferred upx)n these negroes who do 
not understand it. for their benefit and advan- 
tage, when they have not the qualifications to 



10 



exercise it? It cannot be bestowed on them 
for such a purpose, because they cannot appre- 
ciate nor properly enjoy it. But is it conferred 
on them as a punishment of others? If that 
be the object of it, I submit whether there is 
any constitutional power to punish any portion 
of the people of a State by giving the elective 
franchise to those who are not worthy of it? 
We ought to confine ourselves as closely to 
the Constitution as we can ; and upon that 
subject I have a very high authority which I 
will read to the Senate. It is a speech made 
on the 7th of March, 1860, by the Senator 
from Ohio who now occupies the Chair, in 
answer to a speech made by Mr. Toombs of 
Georgia. The debate was as to the right to 
carry property into the Territories. The Sen- 
ator from Ohio said : 

"Take another case, one that is, perhaps, likely to 
occur alittle sooner. Suppose Brigham Young should 
come from the State of Utah and bring with him 
his forty wives, and the State has a law that a man 
shall have but one wife. Brigham says ' These 
are my property; yea, more than my property ; yea, 
they arc forty ribs taken out of my body while I 
slept; I must bring them in here, or the State of 
Utah will not be on equal footing with the other 
States of the Union.' Away with such logic. There 
is no guarantee in the Constitution of the United 
States for such a position as that. Our safety, Mr. 
President, consists in keeping close to the Constitu- 
tion. AVhatever wo claim let us find the direct war- 
rant for itthere, orthe necessary implication to carry 
out some other power that is manifestly granted. 
The moment we go astray from this we are in the 
fog; we are in dispute; we endanger the harmony 
of our action; and it is done in this instance. In this 
great departure from the early principles of this 
Government you have involved portions of the na- 
tion in almost irretrievable hostility to each other. 
Let us go back to the Constitution and follow it." 

That is the language of a statesman who has 
had opportunities to acquire a knowledge of 
the Constitution and its principles, and these 
are his doctrines : " Keep close to the Consti- 
tution." Never was better advice given by 
any statesman or patriot. The closer we keep 
to the Constitution the better for the coun- 
try, for this Government, and for the States. 
" Whatever we claim, let us fiud the direct 
warrant for it there." I ask, where is the 
"direct warrant" for imposing these condi- 
tions on the southern States? Is there any 
warrant in the power to admit new States or 
in the clause relative to the guarantee of a 
republican form of Government? Is there any 
power anywhere in the Constitution of the 



United States to authorize such an assumption 
of authority as prescribing conditions to a free 
and sovereign State ? 

"The moment we go astray from this we are in ihe 
fog; we are in dispute; we endanger the harmony 
of our action, and it is done in this instance." 

Nothing truer was ever said. The very 
moment we depart from the Constitution, that 
moment we are in the fog ; the ship of State 
cannot be steered safely into harbor, but our 
only safety is in keeping "close to the Con- 
stitution." 

As I have stated, negroes cannot properly 
be associated with the whites in the govern- 
ments of the States or in the General Govern- 
ment. They ure of a different race, and their 
incorporation into government will not pro- 
duce harmony and concord. Let me read 
further from the same speech of the Senator 
from Ohio : 

" There is one thing more that I will say before I 
sit down ; but what I am now about to propose is not 
part and parcel of the Republican i)latform, that I 
know of. There is in these United States a race of 
men who aro poor, weak, uninfluential, incapable of 
taking care of themselves. I mean the free negroes, 
who are despised by all, repudiated by all ; outcasts 
upon the face of the earth without any fault of theirs 
that I know of; but they are the victims of a deep- 
rooted prejudice, and I do not stand here to argue 
whether that prejudice be right or wrong. I know 
such to be the fact. It is there immovable. It is 
perfectly impossible that these two races can inhabit 
the same place and be prosperous and happy. I see 
that this species of population are just as abhorrent 
to the southern States, and perhaps more so than to 
the North ; many of those States are now, as I think, 
passing most unjust laws to drive these men off or to 
subject them to slavery; they aro flocking now into 
the free States, and we have objections to them. 
Now, the proposition is, that this great Government 
owes it to justice, owes it to those individuals, owes 
it to itself and to the free white population of tho na- 
tion, to provide a means whereby this class of unfor- 
tunate men may emigrate to some congenial clime, 
where they maybe maintained, to the mutual ben- 
efit of all, both white and black. This will insure a 
separation of the races. Let them go into the trop- 
ics. There, I understand, are vast tracts of the most 
fertile and inviting lands, in a climateperfectlycon- 
genial to that class of men, where the negro will be 
predominant; where his nature seems to be improved, 
and all his faculties, both mental and physical, are 
fully developed, and where the white man degener- 
ates in tho same proportion as the black man pros- 
pers. Let them go there; let them be separated; it 
is easy to do it." 

That was in 18G0, and what was true then 
is true in 1868. He said that it was " impos- 
sible that these two races can inhabit the same 
place and be prosperous and happy;" that 



n 



A 



11 



they are " as abhorrent to the southern States, 
perhaps more so, than to the North;" "they 
are the victims of a deep-rooted prejudice ;" 
"it is there immovable." If this deep-rooted 
prejudice exists, if it is ineradicable, if the 
two races cannot live together prosperously 
and happily, I ask how they can live together 
when they participate in the same Government, 
with the same rights and privileges? If they 
cannot live together in an inferior state when 
this prejudice exists, howcau they live together 
amicably, prosperously, and happily when they 
are to have equal power with the white popula- 
tion ? Is it not absurd to suppose that they 
can get along peaceably and harmoniously 
when enjoying those equal rights and privileges, 
when there is this deep-rooted prejudice of 
which the Senator truly spoke ? 

But I have heard it said that these States are 
to be admitted because their loyal inhabitants 
have asked for their admission, that they have 
complied with the requisitions of Congress by 
forming constitutions and electing State Legis- 
latures, that these loyal citizens of the South 
now come and ask for admission. When did 
the negroes of the South become loyal? Was 
it during the war? Did they not labor to sup- 
port not only the armies of the rebellion, but 
the families of those who were engaged in 
it? They knew nothing about loyalty except 
to their owners. They were loyal to them, 
and labored with industry and fidelity, and by 
their efforts the a,rmies of the South were par- 
tially sustained. How, then, can it be said that 
these are loyal people now when they were 
neither loyal nor disloyal during the war ; or 
if they had any loyalty, it was to the South. 

Mr. President, a great responsibility devolves 
upon the Congress of the United States in 
reference to the matter under consideration. 
Perhaps no subject ever was presented to any 
deliberative body of such magnitude and in- 
volving such momentous consequences as this. 
It affects, or may affect the interests, the lives, 
and the property of millions of persons ; and 
the consequences will be with this Congress. 
Daniel Webster was once asked what was the 
greatest thought of which the human mind had 
ever conceived, and his reply was "individual 
responsibility." It reaches through the past, 
comprehends the present, and in it3 conse- 



quences may extend into the future. That 
responsibility is now upon the Senate of the 
United States and cannot be avoided ; neither 
can it be divided. It is indivisible in its 
nature. Every Senator who supports this 
measure will be answerable for the full and 
aggregate amount and weight of the responsi- 
bility which will grow out of it, if it shall prove 
disastrous and appalling. 

In my opinion this subject rises infinitely 
higher than all party considerations. It is one 
of such a character that party spirit ought not 
to approach it. It is a great constitutional 
question, such as no country ever had to con- 
sider. We can get no precedent from the his- 
tory of other countries and none from the annals 
of our own ; but we are to act upon it accord- 
ing to the lights we have before us and in view 
of its tremendous import and immensity. 

I contend that this bill ought to be post- 
poned, because it cannot be a permanent meas- 
ure. It is impossible in the nature of things 
that it can produce peace, harmony, and pros- 
perity in the South. I suppose no Senator who 
looks at it can fairly conclude that this measure 
can be permanent in its character and pro- 
ductive of happy and fortunate results. I know 
the question is a troublesome one to Congress, 
and I have no doubt they are anxious to dis- 
pose of it. I am as anxious as any member of 
the Senate ; but when it is disposed of let it 
be once and forever. If we pass this bill who 
will answer for the consequences that may fol- 
low if a conflict should ensue between the 
races ? Senators, it is not a permanent meas- 
ure ; it is not one fraught with good, but it 
may be with evil. I hope it is not. I earnestly 
hope that it may redound to the interests of 
my country ; but I can see nothing but trouble, 
strife, and calamity before us if it is forced 
upon the South. You had better defer it until 
a more auspicious period. 

Deal not harshly with these people. If we 
attempt to bring them again into political and 
personal fellowship, let us do it with fraternal 
affection and interest, and not in a manner 
calculated to embitter that relation and to keep 
alive the remembrance of the dreadful conflict 
through which they have passed. Let us not 
extend the right arm of friendship and Invite 
them to our embrace, and at the same moment 



\ 



12 



denounce thera n3 rebels and traitors — words 
which were opprobrioiisly applied to our fathers 
who won our independence, and which can 
'never be used to promote unity and concord. 
We have decided by the wager of battle that 
we cannot be separated, but that we have a 
common country, Constitution, and destiny ; 
aiul have been joined together by political ties 
which can never be broken ; should we not 
resolve to live in unity and peace? 

Let us remember that these brethren of the 
South have passed through ordeals of fire and 
sword ; of blood, havoc, and ruin ; their bright- 
est jewels have been destroyed and lost ; their 
fondest hopes blighted and gone ; husbands, 
sons, wives, and daughters involved in a com- 
mon calamity ; that the passions have been 
lashed by events into the fury of the whirl- 
wind, and hate and anger inflamed by the 



torch and ravages of war ; that want and suifer- 
inghave succeeded plenty and luxury ; poverty, 
humiliation, and sorrow have entered the 
households where competency and comfort 
and happiness held sway. Let the softening 
hand of time be laid upon that unhappy and 
desolated country. Let the passions and ani- 
mosities engendered by the war have time to 
ebb and subside, and at a season not far dis- 
tant these people will be able to accommodate 
themselves to their new condition, and return 
in peace, and unite harmoniously with the 
Congress of the United States, under consti- 
tutions framed by themselves, in that spirit of 
justice and liberality which the progress and 
spirit of the age will prompt and justify, and 
which will place thera upon terras of perfect 
equality and dignity with the other States of 
the Union. 



M, 



I 












>^/^^?rv^*!^CC^^A^^ 



pSIUs^.' 



'^rW 



.^.■a;i#|R^^^ 






v_^?,RiQ/r^^^.:r 



'mr^-'"'^^^^! 






,^A^;^^^^^ 



■',^/\/ " / ^ A/1/ 



1155^ 





"■.- ^ ■ '- , ^« 




^ v^/v ^ 1km 


>«'a> 


MM 






s^^^mh^'^c:-' 



P!-^^>.o::^^^^^ 















O^ft^Afi 






^g'3^^>^-;ja^j 















W^I^^&^W^m^^ 



'^,':^'o.r::c^^^^ 















ly^^^'^C 



■mfff^. 









:^*^^ftg 









..-^^?^0r' 



^^^^nA^:^' 






iS^^;^^-' 


















^nMM«r 






V^7^*y' 



. ,r^rA' 'n; 












u*-":^^^^:^V^S^^^.?:^.*«A».««>^^'^"^^ 



?^:s?*^^c^j:::«6§?ii^ 



